LONDON – The Brexit / Northern Ireland feud will continue into 2022, although there are signs the UK may soften its stance on the role of the EU’s highest court.
Six months of unsuccessful negotiations over post-Brexit trade rules in Northern Ireland led to a unilateral European Commission decision to ease restrictions on UK drugmakers supplying the region, but the gap on all other issues remains important.
European Commission Vice-President Maroš Šefčovič urged his British counterpart, UK Brexit Minister David Frost, to make concessions in a phone call on Friday morning – the last time the two leaders are expected to discuss the Northern Ireland Protocol this year.
“The EU and the UK are partners sharing common global values and challenges, so it is time to change gears and bring our partnership to the level it belongs to,” Šefčovič said at a conference press release in Brussels on Friday.
The EU and the UK agree that an early resolution is desirable by early 2022.
Downing Street has focused on the May elections in Northern Ireland and wants a deal that prevents protocol from becoming the main campaign topic, as Irish Nationalist Party Sinn Féin – currently the largest party in the Assembly of Northern Ireland – could win majority over Democratic Unionist Party. Brussels has so far refused to set a deadline for the talks.
Frost said in a statement the UK wanted to reach an “interim deal” with the Commission early in the new year. Such an agreement should cover customs formalities, food safety controls, the supply of medicines, control of subsidies and the role of the Court of Justice of the European Union (CJEU) in Northern Ireland.
The UK is also willing to leave other sensitive issues such as regulatory divergence, including for manufactured goods, for later. Additionally, Frost lamented the lack of progress on what could be the essential elements of an interim deal despite various proposals from the UK.
“Given the difficult state of the negotiations, we are open to an interim agreement that leaves some problems for later. But we are very clear that the role of the CJEU must be resolved as part of any interim agreement, ”said a British official.
There are signs, however, that the UK has softened its stance on the CJEU since its July demand that the court should have no role in Northern Ireland.
Instead, the UK might be willing to settle for an arbitration panel for disputes in Northern Ireland, which could include a referral mechanism to consult the CJEU on matters concerning the rules of the EU – a solution proposed by Shanker Singham, Managing Director of trade consultancy firm Competere, in an interview with POLITICO’s The Ex Files newsletter in October.
Frost said the Brexit divorce deal “already provides for the use of an independent arbitration mechanism instead, and the easiest and most durable route would be to agree that this should be the only route. to settle disputes in the future “.
The Brexit minister previously alluded to this during a debate in the House of Lords in mid-November, when he said the UK did not want to change the court’s role as arbiter end of EU law, but rather the role of the court “as arbiter of disputes between the two parties”, which he called “unusual”.
“The EU defines the Court of Justice as the final arbiter of what EU law means. We don’t dispute that and can’t do anything about it, ”Frost told his peers. “As long as EU laws apply in Northern Ireland, the court will no doubt continue to assert this right, but that is not the same as saying that it is reasonable for disputes to be settled by the court or that infringement proceedings be initiated. by the Commission, as they have already been done in this context. It is the dispute resolution that is the difficulty.
The UK official said London was looking for a quick mechanism to discuss Northern Ireland issues that may arise in the future, for example regarding tariff rate quotas. A joint committee overseeing the implementation of the Withdrawal Agreement – which includes the Northern Ireland Protocol – meets regularly to resolve problems with its implementation, but the UK official said he could not be “a six-month gap between identified issues and EU adoption.” the table with concrete proposals to deal with it.
The EU, however, remains firm in its opposition to any changes to the governance chapter of the Northern Ireland Protocol. Brussels is willing to give Northern Irish actors a greater role in decision-making bodies regarding rules in the region, but efčovič insisted that he had no mandate to renegotiate the role of the CJEU and that it is not reported as a problem by citizens or businesses.
“Without the European Court of Justice, we cannot have a properly functioning single market,” he said.
Stuck in the mud
Both sides agree that progress has been close to zero in all areas except the supply of medicines, on which the Commission on Friday presented a legislative proposal to relax post-Brexit rules for manufacturers based in Great Britain but wishing to sell their drugs in Northern Ireland.
Šefčovič called the drug movement “a milestone” covering generic drugs and innovative drugs such as those for treating cancer. Frost said the EU’s proposals on this issue “constitute a constructive way forward” that the UK will explore in detail over the coming weeks.
The Commission Vice-President insisted that the entire EU package of proposals to resolve the Northern Ireland dispute, presented in mid-October, represents a “tailor-made” solution ” unprecedented”.
Šefčovič said the UK has yet to reciprocate the ‘big step’ taken by the Commission when it proposed a number of changes to customs and food safety controls – known as sanitary and phytosanitary rules ( SPS) – which he said could lead to an 80 percent reduction in physical checks.
Frost acknowledged that the EU’s proposals in this area “are a step forward”, but they do not go as far as the Commission publicly claims. London argues that not only goods but also domestic animals, livestock, plants and seeds entering Northern Ireland and intended to remain in the region – rather than entering the EU via the Republic of Ireland – should also be subject to much less checks.